For wealthy families with multi-generational members in Hong Kong and Singapore, the joint structure model of family charitable trusts, foundations and family offices has become a very common way of governing the family.
Some families even use a family office to oversee the foundation’s operations. Some families will put family inheritance and charity in the same trust, and clearly stipulate how much of the funds will be used for charity.
Take, for example, the Bill Gates family, which established the Bill & Melinda Gates Trust and the Bill & Melinda Gates Foundation. Among them, the Bill & Melinda Gates Trust is responsible for managing the donated property, and the Bill & Melinda Gates Foundation is responsible for the use of charitable funds. The Foundation employs more than 1,600 employees to search for charitable projects around the world.
In general, charitable foundations and charitable trusts each have their own advantages.
In the last issue, we invited Yinuo Family Office to talk about “Charitable foundation or trust? This article can cure your philanthropic entanglement”. So for high-net-worth individuals, how to combine their respective advantages to better carry out public welfare activities? Is there anything else that needs attention?
This issue of “New Wisdom of Family Office” will invite Yinuo Family Office to chat with us about this topic, and I hope it will be helpful to you. Yinuo Family Office is a joint family office. Its main business covers three major sectors: family tax law, family education, and family charity.
The Charity Law stipulates that the trustee of a charitable trust may be a charitable organization or trust company that the settlor determines to trust. Therefore, in practice, there are usually the following three types of operation modes: trust institutions act as the sole trustee; charitable organizations act as the sole trustee; there are also cases where trust institutions and charitable organizations act as trustees together.
01 Trust as sole trustee
Under this model, charitable organizations can be divided into the following categories according to whether they act as trustees or executors:
Mode A: Natural persons or enterprises act as the client, and charitable organizations may act as the project executor
Mode B: The charitable organization acts as the client and may also act as the project executor
Model C: Natural persons or entrepreneurs, etc., act as trustees at the same time as charitable organizations
(1) Model A: Natural persons or enterprises act as the client, and charitable organizations may act as the project executor
In this model, a natural person or enterprise acts as the settlor, and the trust company acts as the trustee, responsible for the establishment of the charitable trust, the maintenance and appreciation of the value of the trust property, and the daily operation and management. In terms of decision-making and project execution, in practice, there may be three situations:
The first is to establish a management committee composed of representatives of all parties involved in the subject to make decisions. At the implementation level, charitable organizations can be entrusted to publish, screen and evaluate charitable projects.
Under normal circumstances, if the settlor wants to have higher decision-making power over the operation of the charitable trust, he can hold an important position in the charitable trust management committee, and then conduct selection, evaluation and review of project executors and proposed funding projects.
The second type is dominated by trust companies with mature charitable projects. If the trust company has philanthropic talents and talents who can independently operate philanthropic projects, this is also an option. Such as the “Looking at the World” charitable trust of Shanghai International Trust Company.
The third is that philanthropic decision-making is mainly made up of external experts. For example, “China Railway Trust·Mingde No. 1 Yihua Environmental Protection Charity Trust” appoints China Biodiversity Conservation and Development Foundation (Green Hair Association) as a public welfare consultant, and has the right to nominate and appoint experts to form a decision-making committee to review the declared environmental protection projects Professional review.
Among them, the members of the decision-making committee are all external personnel, including representatives of the client’s local government, representatives of the National People’s Congress, ecological experts, environmental pollution control experts, and representatives of environmental protection social organizations.
The following is the structure of the charitable trust:
Photo source: China Railway Trust Mingde No. 1 Yihua Environmental Protection Charity Trust Operation Report
From the point of view of the operation mechanism, the trustee or the public interest consultant publishes the environmental protection project solicitation announcement, and then the public interest consultant reviews and summarizes the self-service projects applied for, and forms a public interest consultant opinion, and then submits the environmental protection projects that meet the requirements to the decision-making committee for decision-making. deliberate.
According to the preliminary review of the project, the public interest consultant organizes the review meeting of the decision-making committee. In terms of voting, more than 2/3 (inclusive) of the members present and the resolutions made at the meeting must be approved by more than 2/3 (inclusive) of the members present at the meeting.
Regarding mode A, when a charitable organization acts as the project executor, due to different funding paths, the following billing problems will arise.
The first one is directly transferred to the beneficiary or project party, and charitable organizations cannot issue invoices. For charitable projects approved by the management committee, the project executor only needs to be responsible for finding eligible funding objects, and does not involve specific expenses of charity, such as education aid for poor children, etc., which can be directly transferred from the trust account to the beneficiary’s account or the project party. .
Under this fund path, the funds have not entered the account of the charitable organization, and the charitable organization cannot issue invoices. Therefore, usually for small charitable expenditures, when the client does not need an invoice, it can be directly transferred to the beneficiary or the project party.
The second is to transfer to charitable organizations first, and then transfer from charitable organizations to beneficiaries or project parties. Invoices can be issued, but there are risks.
For projects that require project executors to be responsible for the specific implementation of donations, the special trust account can be given to the charitable organization first, and then the charitable organization will be responsible for the expenditure of the donations within the scope of approval, such as building primary schools and libraries.
Under this fund path, the funds enter the account of the charitable organization, so the charitable organization can issue an invoice.
But for charitable organizations, the source of funds is the charitable trust fund account, not the client. In this way, can the charitable organization directly invoice the client? Are there risks?
In fact, in practice, some local civil affairs departments recognize this approach. As long as the settlor explains the source of funds to the trustee, in this case, charitable organizations can issue donation invoices directly to the settlor based on the principle of penetration. However, the State Administration of Taxation has not yet given a clear answer to this.
For the client, he can enjoy pre-tax deduction after obtaining the bill issued by the charitable organization, without worrying about tax risks. Therefore, whether the client can obtain the invoice mainly depends on whether the charitable organization dares to issue an invoice, whether it is willing to issue an invoice, and whether it will land safely after the invoice is issued.
However, even if donation notes can be issued, this model still faces a problem: the consignor cannot obtain a full amount of donation notes at one time.
Because charitable organizations can issue donation receipts for the corresponding amount only when funds have entered their accounts. The duration of a charitable trust may be many years, and the trustee usually transfers the trust property to charitable organizations in stages based on specific projects. This means that the issuance of donation notes will not be synchronized with the establishment of charitable trusts.
For natural persons, the donation receipts they obtain can only be deducted before tax in the current year. For enterprises, it can be deducted before tax in the year of donation and the following three years. Therefore, for the consignor, in order to maximize the value of the donation invoice, it is necessary to reasonably plan the progress of the project donation as appropriate.
(2) Model B: Charitable organizations act as the client and may also act as the project executor
Under this model, it actually includes two legal relationships of “donation” and “trust”. The donor donates the money to the charitable organization, and then the charitable organization acts as the trustee to transfer the money to the special account of the charitable trust. The functions and design logic of trust companies and decision-making institutions are basically consistent with Model A.
Under this donation-first model, charitable organizations can issue donation invoices to donors, usually without worrying about the compliance risks of invoicing. In addition, it also better solves the problem that donors under Model A cannot obtain full donation receipts at one time.
The above two points are in line with the provisions of the law, but is this plan perfect? not necessarily. In this scheme, there are two issues to be aware of.
First, about the bookkeeping of charitable organizations.
Charitable organizations receive donations from donors and count them as “donation income”, so they can issue charitable receipts. However, when a charitable organization transfers charitable funds to a charitable trust, can this be counted as the charitable activity expenditure of the charitable organization? Or can it only be recorded as foreign investment?
According to regulations, both public and non-public foundations have certain mandatory expenditure requirements, especially public foundations need to use 70% of the donation income of the previous year, or 70% or more of the average donation income of the previous three years. Charity spending.
If it cannot be regarded as expenditure for charitable activities, this will undoubtedly put some pressure on charitable organizations.
At present, some civil affairs departments allow charitable organizations to entrust funds to charitable trusts as charity expenditures based on the principle of penetration. Therefore, it is recommended to consult the local civil affairs department in charge of this issue in advance during the specific implementation.
Second, whether a charitable organization can act as a client and a project executor at the same time.
Although the current law does not restrict this. However, if a charitable organization acts as the client and project executor at the same time, the charitable project or beneficiary ultimately funded by the charitable trust is likely to be the target of the charitable organization’s self-help, or the funds will be transferred from the charitable trust to the account of the project executor.
So, will this lead to benefit transmission, and will it constitute a self-benefiting trust? From a formal point of view, charitable organizations act as the client and project executor at the same time, which indeed makes people doubt the fairness of this structure of charitable trust. But still to discuss:
First of all, although charitable organizations act as project executors, usually when charitable funds are disbursed, the trust company as the trustee will also review the disbursement of charitable funds to ensure that the use of charitable funds meets the purposes specified in the charitable trust contract. Therefore, as long as a reasonable selection mechanism is set up in advance, the so-called self-benefit trust will usually not be constituted.
After all, the “Measures for the Administration of Charitable Trusts” also stipulates that the settlor of a charitable trust shall not designate or designate in disguise a person who has an interest in the settlor or trustee as a beneficiary, and it is impossible for charitable trusts to allow charitable organizations to transfer benefits.
Secondly, when donors donate charitable funds to charitable organizations, they usually agree on the scope of charitable expenditure, otherwise it may constitute a breach of contract. Therefore, as long as the charitable organization is not managed for its own benefit within the scope permitted by the donation agreement, the possibility of forming a self-benefit trust is not very high.
Many charitable trusts are adopting this structure, such as “China Resources Trust·Heyuan Cultural Conservation Charitable Trust Plan”, “Hupan Magic Beans Charitable Trust”, “China Resources Trust·Runxin Charitable Trust Plan, etc.
In terms of governance and operation, the “Lantian Zhiai No. 1 Charitable Trust” established in 2016 also has a certain reference effect.
The trust was initiated and established by Anxin Trust entrusted by the Shanghai Charity Foundation. It is a sustainable charitable trust with a total scale of 100 million yuan, and the first phase of funds is 32 million yuan. It was one of the largest charitable trust projects in China at that time.
The funds for the establishment of the trust by the settlor came from donations from several companies, including a trust company and Greenland Holdings.
Trust companies, as trustees, are mainly responsible for maintaining and increasing the value of trust funds. The Shanghai Charity Foundation is not only a charitable trust trustee, but also a charitable project consultant. It is responsible for recommending charitable projects to the trustees, and providing professional guidance and advice to the selected charitable projects and formulating donation plans.
Innovation in governance and operation is mainly manifested in two aspects.
The dual law firms will perform monitoring and consulting functions respectively. While hiring Shanghai Lianhe Law Firm as the supervisor, Shanghai AllBright Law Firm was also hired as the legal consultant.
The two law firms participated at the same time and performed different functions, which further reflects the core of trust operation-based on the importance of contractual relationship and contract text, it is necessary to have lawyers with strong professional qualifications to ensure the legal, compliant and effective operation of charitable trusts.
Regular open interaction with the public. It is expected that an open day will be set up every month to attract people from all walks of life to join the trust plan and purchase the trust product.
(3) Model C: natural persons or entrepreneurs, etc., and charitable organizations act as trustees at the same time
This model is basically the same as Model B, but the innovation is that the original donor can jointly initiate the establishment of a charitable trust as a settlor with a charitable organization. The structure is as follows:
Of course, the first step also requires the original donor to donate most of the money to charitable organizations, and then obtain a donation receipt that can be deducted before income tax.
The trust property under this model consists of two parts. The first part is a small amount of funds used by the donor alone to establish the trust, and the second part is the funds donated by the donor to charitable organizations for the establishment of the trust.
Although this mode will also face the problems faced by mode B, compared with mode B, it has advantages and disadvantages.
The advantage is that the donor is also one of the settlors and can hold an important position in the charitable trust management committee. They can participate in the operation and decision-making of charitable trusts to a greater extent, and can appropriately reduce the agency costs of charitable organizations. This model is suitable for donors who have a high degree of control over charitable projects.
The disadvantage is that the donor may not be able to obtain a donation invoice for the part of the fund that is used solely to set up a charitable trust.
If the charitable trust also appoints a charitable organization that can issue invoices for charitable donations as the project executor, then, during project execution, if the charitable organization receives funds transferred from the charitable trust, can the charitable organization continue to apply the model A? It is also a problem to issue donation invoices to donors beyond the principles.
02 Charity as sole trustee
Compared with a charitable trust with a trust company as the trustee, having a charitable organization as the sole trustee has certain advantages.
For example, charitable organizations occupy a dominant position as trustees, enabling them to exert their subjective initiative and actively explore and utilize their advantages in project operation and charitable resources in the field of charity.
In addition, many charitable organizations in China have relatively high influence. Entrusting such charitable organizations as clients can help clients improve their own credibility and reputation.
In practice, this type of charitable trust is rarely seen in my country because of the following problems that may exist in this structure.
1. Charity organizations occupy a dominant position and lack certain checks and balances;
2. The function of trust property value preservation and appreciation is relatively weak;
3. It is impossible to open a special trust account in the bank, which greatly reduces the independence of the trust property.
If you encounter the above problems, is there a solution?
For the first question, you can refer to how the first domestic charitable trust dealt with it.
“Beijing Entrepreneur Environmental Protection Foundation 2016 Alxa SEE Public Welfare Finance Class Environmental Charity Trust” is the first charitable trust in the country with a charitable organization as the trustee.
In 2016, it was initiated by Zhang Quan, the representative of Alxa SEE Public Welfare Finance Class, and the Beijing Entrepreneur Environmental Protection Foundation served as the trustee. The scale of charitable assets was 1 million yuan and the period was 10 years. The main purpose was to fund and support the growth of Chinese non-governmental environmental protection public welfare organizations. In order to realize the sustainable development of ecological environment protection.
The operation of the trust is mainly carried out indirectly by funding environmental protection organizations, rather than directly using funds to improve the environment. In this way, some other charitable organizations will be added as operators accordingly, and cooperation with experts in related fields will be established, and new participants will be continuously introduced to strengthen the supervision and restriction relationship between each other.
The second problem is that charitable organizations themselves are relatively weak in maintaining and increasing the value of charitable assets.
In practice, charitable organizations acting as trustees can also find another trust company or professional financial institution to cooperate with. The two parties share the same “ordinary single trust property account”, and the institution is entrusted to act as an agent for the investment of related charitable assets.
Compared with the “charitable organization + trust company” model, the subjectivity of this model is relatively weak, but it can also make up for the weaker ability to maintain and increase the value of assets. However, attention should be paid to coordinating the management fees arising from the principal-agent relationship and the responsibilities and risks of the custody of charitable assets.
The third problem is actually the question of the independence of the trust property caused by the non-custodial control of the charitable trust.
In fact, this model is similar to the special funds of foundations. Charitable foundations in some regions are allowed to open ordinary accounts for special funds in addition to the basic accounts of banks.
In this way, a certain independence effect can also be produced, but the effect is not as good as the independence under custody. In practice, it is true that some local civil affairs departments refuse to file charitable trusts where charitable organizations act as sole trustees because they cannot open a special trust account.
03 Trusts and charities as dual trustees
A charitable trust may have two or more trustees, but the settlor shall determine one of them to be responsible for the main trusteeship and management, and make a record at the place where the trustee is located.
Trust companies and charitable organizations act as trustees together, which can combine the ability of trust companies to maintain and increase the value of trust property and the advantages of charitable organizations in project operation. The trustees can also supervise each other and form a check and balance relationship of rights and obligations.
This will help to form a restriction mechanism and an industry self-discipline mechanism within the charitable trust, and further improve the fairness, transparency and overall credibility of the trust operation. The architecture is as follows:
At present, many charitable trusts have chosen this structure.
For example, “CITIC · He Xiangjian Charity Foundation 2017 Shunde Community Charity Trust”, “Shaanxi International Investment · Field Group Poverty Alleviation Charity Trust”, “Tianxin Shijia · Xinde Datong Group Charity and Aid Charity Trust”, “CITIC·Shanghai Charity Foundation 2017 Blue Sky Love No. 2 Huifu Charity Trust” and so on.
In this model, the funding path is usually for the donor to transfer property to charitable organizations.
The charitable organization transfers the trust property to the special trust property account opened by the trust company , so as to realize the independent management of the trust property and the inherent property of the two trustees. Subsequently, the two trustees performed their respective duties in accordance with the agreement in the trust contract.
This is similar to the funding path of the previously mentioned charitable organization acting as the trustee. The donor first gives the charitable money to the charitable organization, and the charitable organization issues a pre-tax deductible invoice.
The difference is that under the dual-trustee model, after the charitable organization accepts the donation, it can be regarded as the transfer of the trust property.
However, it should also be noted that although both parties act as trustees at the same time, in the specific operation, it is necessary to make clear and specific agreements on the rights, obligations, discussion methods, and responsibility boundaries of the two trustees in the trust document, so as to avoid 1 The effect of +1<1.
Take “CITIC·He Xiangjian Charity Foundation 2017 Shunde Community Charity Trust” as an example. The trust has Midea Holding Co., Ltd. as the trustor, and Guangdong He Xiangjian Charity Foundation and CITIC Trust as the dual trustors. The total size is 492 million, and it is also the third largest charitable trust in the country so far.
In this trust, although the charitable organization He Xiangjian Charity Foundation of Guangdong Province acts as the trustee, the project executor of the charitable trust is the Desheng Community Charity Foundation of Guangdong Province.
The reason for this establishment may be that the charitable trust has a large scale and requires more resources in its specific implementation and operation. For the efficient operation of the charitable trust, a charitable organization other than the trustee was introduced as the project executor. The trust structure is as follows:
In terms of specific operations, the project executor, Guangdong Desheng Community Charity Foundation, selects beneficiaries according to the beneficiary selection criteria formulated by it, and submits them to the charity foundation for review.
After the latter is approved, it will provide the Trust Benefit Distribution Notice to CITIC Trust, which is also the trustee. CITIC Trust will conduct a formal review on this, and after confirming that it complies with the agreement in the trust document, CITIC Trust will transfer the trust benefits to the project executor.
04 Summary
Through the above analysis, we can see that several charitable trust models have their own advantages and disadvantages. Philanthropists should make comprehensive considerations and choices based on their own needs and charitable planning.
When a trust institution acts as a trustee, it has the advantages of flexible operation and natural value preservation and appreciation of trust property. In specific project operations, charitable organizations can be introduced at the front or back end to solve the problem that charitable trusts cannot issue donation invoices.
However, introducing charitable organizations at the front end will also encounter accounting problems for charitable organizations. If the charitable organization also serves as the project executor, there may occasionally be a problem of approximation between the charitable organization and the self-benefit trust.
In addition, when charitable organizations are introduced at the back end, that is, when charitable organizations only act as project executors and not as clients, there will also be risks that the invoicing compliance has not been officially certified by the tax law and the client’s donation and ticket collection period mismatch. circumstances, which may cause the client to lose certain tax benefits, etc.
In fact, in terms of advantages and experience in the operation of charitable projects, charitable organizations are the number one candidate for trustees.
However, the charitable structure in which charitable organizations act as a single trustee is also rare in China due to the checks and balances of rights, weak property independence, and weaknesses in the maintenance and appreciation of trust property.
As for the dual-trustee structure, it also combines the dual advantages of charitable trusts and charitable organizations. It is also better than a single trustee in terms of supervision and checks and balances. 1+1<1 effect.
(Reminder of ” Family Office New Wisdom Points “: the content and opinions are for reference only, and do not constitute any investment advice.)
This article is from the WeChat public account “Family Office New Wisdom Point” (ID: foinsight) , author: foinsight, 36 Krypton is authorized to publish.
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